HERNANDEZ v. UNITED STATES (2024)

ORDER

Pending before this Court is Defendant United States of America's Motion to Dismiss (Document No. 15). Having considered the motion, submissions, and applicable law, the Court determines the United States’ motion should be granted.

I. BACKGROUND

This case arises from the Federal Tort Claim Act (“FTCA”). Plaintiff Pilia Hernandez (“Hernandez”) is a citizen of El Salvador who illegally entered the United States in 2021. Hernandez was apprehended upon his entry into the United States and was ultimately released. In December 2021, Hernadez was arrested in Harris County for assault on a family member. He was released from Harris County Jail on his own recognizance and transferred to Immigration and Customs Enforcement (“ICE”) custody at the Montgomery Processing Center in Conroe, Texas. Subsequently, removal proceedings were initiated. Six months later, Hernandez had yet to be removed and was allowed to bond out of detention. Hernandez's case was then transferred to the “undetained docket,” and a hearing was set for September 19, 2023.¹

On July 19, 2022, while waiting for his next hearing, Hernandez traveled to Uvalde, Texas, where a Texas state trooper stopped him. A vehicle search revealed the identification document the Harris County Jail issued to Plaintiff after he was arrested in December 2021. Hernandez, who did not have his immigration documents, was transported to a CBP (“Customs and Border Patrol”) interior checkpoint and then to a CBP office. After further investigation, that same day, Plaintiff was dropped off at the Eagle Pass/Piedras Negras Border. CBP removed Hernandez to Mexico pursuant to the Services Centers for Disease Control and Prevention (“CDC”) order issued in response to COVID-19 (“Title 42 Order”).² On August 11, 2022, CBP paroled Hernandez back into the United States.

Based on the forgoing on February 20, 2024, Hernandez filed suit in this court asserting claims against Defendant the United States of America (“United States”) for: (1) false imprisonment; (2) abuse of process; (3) negligence; and (4) Intentional infliction of emotional distress (“IIED”). On May 16, 2024, the United States moved to dismiss Hernandez's claims for lack of subject matter jurisdiction and, in the alternative, for failure to state a claim.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) requires that a court dismiss a claim if the court does not have subject matter jurisdiction over the dispute. Fed. R. Civ. P. 12(b)(1). A motion for lack of subject matter jurisdiction under Rule 12(b)(1) must be considered before any motion on the merits because subject matter jurisdiction is required to determine the validity of any claim. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994). “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Id. Unlike a court considering a Rule 12(b)(6) or Rule 56 motion, district courts have a “unique power ․ to make factual findings which are decisive of [subject matter] jurisdiction” when considering a motion under Rule 12(b)(1) that raises questions of fact relevant to subject matter jurisdiction. Williamson v. Tucker, 645 F.2d 404, 412–13 (5th Cir. 1981).

As with a Rule 12(b)(6) motion, the Court is permitted to consider “the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters which a court may take judicial notice.” Wolcott v. Sebelius, 635 F.3d 757, 763 (5th Cir. 2011). The motion “should be granted if there is no issue of material fact and if the pleadings show that the moving party is entitled to judgment as a matter of law.” Van Duzer v. U.S. Bank Nat'l Ass'n, 995 F. Supp. 2d 673, 683 (S.D. Tex. 2014) (Lake, J.) (citing Greenberg v. Gen. Mills Fun Grp., Inc., 478 F.2d 254, 256 (5th Cir. 1973)).

III. LAW & ANALYSIS

The United States contends that the Court lacks jurisdiction over Hernandez's claims because CBP's actions fall under the discretionary function exception (“DFE”) of the FTCA.³ Alternatively, the United States contends Hernandez fails to state a claim for which relief may be sought. Hernandez contends the DFE does not apply here because the CBP had a mandatory duty not to remove Hernandez while he was already undergoing the removal process. Hernandez further contends that he has adequately pleaded all his claims against the United States.

“The United States is sovereign, and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued.” Hebert v. United States, 438 F.3d 483, 487-88 (5th Cir. 2006). Congress passed the Federal Tort Claim Act (“FTCA”), which “grants a limited waiver of sovereign immunity” to allow federal courts subject matter jurisdiction over certain claims. Willoughby v. United States, 730 F.3d 476, 479 (5th Cir. 2013). However, congress limited the scope and applicability of the FTCA. The DFE limits the FTCA's waiver of sovereign immunity to exclude claims brought against the United States for “any claim ․ based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The Supreme Court has established a two-prong test to determine if an action falls into the DFE. United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). First, the conduct in question must be “discretionary in nature” and have involved “an element of judgment or choice.” Joiner v. United States, 955 F.3d 399, 404 (5th Cir. 2020) (quoting Gaubert, 499 U.S. at 322, 111 S.Ct. 1267). Additionally, the conduct must be “of the kind that the discretionary function exception was designed to shield.” Joiner, 955 F.3d at 404 (quoting Case Gaubert, 499 U.S. at 322–23, 111 S.Ct. 1267).

Here, the United States contends CBP's conduct involved a series of discretionary decisions during the investigation and ultimate removal of Hernandez to Mexico. Specifically, the United States contends that all of CBP's actions, including whether to further investigate Hernandez's status after discovering he did not have his immigration papers, which searches to run in which databases, and whether to apply the Title 42 Order and ultimately remove Plaintiff were discretionary in nature.⁴ The Fifth Circuit has held that “Decisions on when, where, and how to investigate and whether to prosecute have long been found to be core examples of discretionary conduct for which the United States maintains its immunity.” Tsolmon v. United States, 841 F.3d 378, 383 (5th Cir. 2016) (holding that the numerous decisions made by a CBP agent during an investigation were the type of conduct contemplated by the first prong of the DFE test). Hernandez contends the CBP did know or should have known of his status and did not have the discretion to remove him under the Title 42 Order. However, the record indicates Hernandez did not have his immigration documents at the time of his arrest and subsequent removal under the Title 42 Order.⁵ Hernandez asserts that CBP should have discovered his status based on the investigation it conducted and the statements he made during his detention. Guidance issued to CBP officers stated to apply Title 42 Order if “[b]ased on training, experience, physical observation, technology, questioning, and other considerations, ․ an agent believes that it is more likely than not that a person is an alien seeking to enter the United States, without proper travel documentation ․”⁶ Here the CBP had to make discretionary judgment calls in real time with incomplete information. Accordingly, the Court finds the decisions made by the CBP were discretionary decisions involving an element of judgment on the part of the CBP.

Regarding the second prong, CBP's investigation and decision on applying the Title 42 Order involved public policy considerations. The Fifth Circuit has indicated that the existence of a law or regulation allowing a government employee discretion creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies. Joiner, 955 F.3d at 404. Moreover, the Supreme Court has emphasized that “[d]iscretionary conduct is not confined to the policy or planning level” and extends to the “[d]ay-to-day management of ․ affairs.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. Here, CBP's actions are directly related to policies involving both public health and immigration decisions. Accordingly, the Court finds that the discretionary decisions made by the CBP were the type of decision the DFE is meant to apply. Hernadez contends the ultimate removal was not allowed and hence not discretionary. However, Hernandez had no documentation of his status causing the CBP to investigate which involved multiple discretionary decisions made by the officers. The United States contends “[t]here is ․ no authority directing this Court to ignore [CBP's conduct] alleged in the complaint and focus only on the removal [of Hernandez].⁷ Tsolmon, 841 F.3d at 380-83. Therefore, the Court finds that the CBP's actions throughout the investigation and subsequent decision to apply the the Title 42 Order falls within the DFE of the FTCA, and as such, this Court lacks jurisdiction. Thus, the Court finds Hernandez's complaint should be dismissed.⁸

IV. CONCLUSION

Accordingly, the Court hereby

ORDERS that Defendant United States of America's Motion to Dismiss (Document No. 15) is GRANTED. The Court Further

ORDERS that Plaintiff Pilia Hernandez's claims against Defendant United States of America are DISMISSED.

THIS IS A FINAL JUDGMENT.

FOOTNOTES

1.   Complaint, Document No. 1 at 5.

2.   On March 26, 2020, the CDC issued an order pursuant to Sections 362 and 365 of the Public Health Service Act (“Title 42 Order”) that “suspend[ed] the introduction of certain persons from countries where an outbreak of a communicable disease exists.”

3.   Motion to Dismiss, Document No. 15 at 1.

4.   Motion to Dismiss, Document No. 15 at 10.

5.   Motion to Dismiss, Document No. 15 at 2.

6.   Motion to Dismiss, Document No. 15, Exhibit A at 1 (COVID-19 CAPIO).

7.   Defendant's Reply in Support of Motion to Dismiss, Document No 18 at 3.

8.   The Court notes that in the alternative, the United States contends Hernandez has failed to state a claim. However, based on the forgoing analysis the Court need not reach those contentions.

DAVID HITTNER, United States District Judge